Alienation of Affection

I suspect that the billion dollar divorce industry that thrives on the the emotional carnage of relationships gone sour would take a huge hit if our laws worked to make our “dis-unions” more equitable.

I read recently that its unwritten knowledge between attorneys that there should be no mention of a settlement between parties until 40% of the assets are spent on legal fees. At those rates, the average middle class divorce can run up fee’s into the six figures. Imagine finding yourself in a bad marriage and realizing it’s going to cost you $100,000 or more to get out of it! And that’s the average. High profile divorces cost way more then that. David Hasselhoff (sp?) is reported to have spent over a million dollars on his still undone divorce. A million dollars? Just to get a divorce? I bet the settlement wont even be that high.

I met a divorce atty in the early 90’s. His annual REPORTED income: $750,000. We’ve got to do something about this, or no male in his right mind would say “I Do” ever again.

If we remember that the jurists who could ultimately fix this problem…are attorneys…whose friends are attorney’s… Why would they divest themselves of the potential to rake in that kind of money?

Why in your opinion does the court not take these cases? If family law is gender bias, should it not be struck down as unconsitutional? I find it a tad bit ironic that a court that rountinely brings up racial bias cases refused to address any of these cases. Are some forms of discrimination more tolerable than some?

Well, that’s an issue. But I don’t think an Equal Protection and/or Thirteenth Amendment (perpetual garnishment is slavery, slavery, I say!) argument was properly raised.

For more weighty cases get turned away without explanation.

The court turned away a case involving a Texas man forced to pay child support for three children who weren’t biologically his (his wife cheated, but the kids were deemed his since they were conceived during the marriage), and yet denied any right to visit those children, effectively denying him his 14th Amendment parental rights while imposing on him parental obligations.

The federal courts also turn away cases involving men jailed for not paying child support that they cannot afford to pay, after hearings in which they were denied the right to counsel (never mind that criminal defendants facing jail are entitled to counsel under Gideon), misapplying abstention doctrines.

(For those who ask why someone would get a divorce if they can’t afford child support, I would point out that it is usually the custodial parent who seeks the divorce — wives initiate two-thirds of all divorces — and in many states, like Massachusetts, child support awards for middle-income families substantially exceed what such families actually spend on raising their children).

There’s a classic circuit split making a grant of certiorari appropriate, since the state appellate courts are split over whether or not civil contemnors like child support obligors are entitled to appointed counsel before being jailed. (See, e.g., the Washington State Supreme Court’s Tetro decision).

But the justices haven’t shown any interest in the past in resolving that split.

Nor have they shown any interest in enforcing their own 1979 decision in Orr v. Orr, that family law decisions such as awards of alimony are supposed to be gender neutral.

Family law is pervaded by gender bias against male litigants. Similarly situated litigants are not treated alike when they are of different genders. Romantic paternalism is the order of the day.

Consider a relatively mild example: the courts of the state where many of the justices live: Virginia, whose courts are no more biased than those of the average state.

In Virginia, the Court of Appeals ordered a man who made only one-fifth of what his wife made, and who was unemployed and the primary caregiver of the couple’s offspring, to pay his wife 40 percent of his meager disability pension, and denied him any spousal support (Asgari v. Asgari (2002)).

By contrast, men are routinely ordered to pay alimony to their ex-wives even when the ex-wife’s income is fairly similar to the husband’s, and even if the ex-wife is able-bodied and only “needs” alimony because her own salary, which is quite sufficient to support a middle-class lifestyle, is not sufficient to support the lavish lifestyle to which she is accustomed.

In an unpublished case, the court ordered a man to pay more than half his net income in alimony to his drunken wife, including money to pay for a car that she illegally drove after getting convicted for drunk driving and getting her license was suspended. (Judge Benton dissented).

And yet, in another case, it denied a man who a small fraction of what his wife made any alimony, citing his alcoholism.

Apparently, alcoholism is grounds for sympathy and an increase in alimony when the alimony-seeker is a wife, and grounds for denial of alimony when the alimony-seeker is a husband.

While drunkenness is apparently disqualifying for a man, greater sins are not disqualifying for a woman.

An adulterous woman received alimony in Calvin v. Calvin even though the court admitted her treatment of her blameless husband was “vindictive and cruel,” and even though Virginia law creates a strong presumption against alimony to adulterous spouses, statutorily banning alimony to an adulterous spouse unless it would be “manifestly unjust” to deny it in light of both comparative fault and economic factors.

Similarly, a woman who stabbed her truck-driver ex-husband received alimony.

(In case you are wondering, I am not divorced, don’t owe child support, and am happily married).

The “alienation of affection” claim seems ultimately like a “tortious interference with contractual relations” claim to me. Marriages are very contractual in nature — Jewish marriages are explicitly so. Seems like a straightforward state issue.

As far as I can tell,the evidence that he lured her and caused her to alienate her affection for him is circumstantial at best.

But back to the constitutional issue, I guess it’s up to Justice Kennedy again, can states punish adultery? More over, can it punish one party of an adulterous affair and leave the other one alone?

Out of curiousity, what are the stats on cases like this in the 6 states that practice this law?

Because I can envision plenty of claims coming from the wife claiming that the “other” woman alienating affection of their husband by luring their husbands by being younger, more beautiful.